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United States v. Radin

United States District Court, S.D. New York

May 22, 2017


          Michael Ferrara, Esq. Stephanie L. Lake, Esq. Assistant United States Attorneys United States Attorney's Office Southern District of New York Ms. Lidya M. Radin c/o Mr. Joe Friendly


          HENRY PITMAN United States Magistrate Judge.

         I. Introduction

         By motion dated January 5, 2017 (Motion to Disqualify Magistrate Pitman for Bias & as a Material Witness, dated Jan. 5, 2017 (Docket Item ("D.I.") 21) ("Motion to Disqualify")), defendant moves pursuant to 28 U.S.C. §§ 144, 455 to disqualify me for being both biased and a material witness; defendant also raises a host of other, unrelated legal issues. For the reasons set forth below, defendant's motion is denied in all respects.

         II. Facts

         On January 28, 2016, defendant allegedly pushed a Court Security Officer on the 20th floor of the United States Courthouse located at 500 Pearl Street, New York, New York (the "Courthouse") after being directed by court security personnel not to enter an elevator. As a result, defendant was issued a United States District Court Violation Notice, citing her for a violation of 18 U.S.C. § 111(a)(1) (Government's Opposition to Defendant's Motion to Disqualify, dated Jan. 19, 2017 (D.I. 27) ("Gov.'s Mem."), Ex. A).

         In a separate incident, on July 7, 2016, defendant allegedly refused to comply with an instruction from court security personnel to leave the Courthouse. She also allegedly yelled and screamed in the lobby of the Courthouse. As a result, defendant was issued two additional United States District Court Violation Notices, citing her for violations of 41 C.F.R. §§ 102-74.385, 102-74.390(a) (Gov.'s Mem., Ex. B).

         On September 26, 2016, the Government filed a Superseding Misdemeanor Information against defendant with respect to the January 28 and July 7, 2016 incidents. Counts One and Three charged defendant with violating 41 C.F.R. § 102-74.385, a Class C misdemeanor. Count Two charged defendant with violating 41 C.F.R. § 102-74.390(a), also a Class C misdemeanor (Superseding Misdemeanor Information, filed Sept. 26, 2016 (D.I. 12)).

         Defendant was arraigned on the Superseding Misdemeanor Information on November 10, 2016. Because defendant refused to enter a plea, I entered a plea of not guilty on her behalf (November 10, 2016 Transcript (D.I. 25) ("Nov. Tr."), at 5:19-5:22).

         Defendant has been advised of her rights, including her right to counsel, on multiple occasions. Nevertheless, defendant has refused representation at all times and is proceeding pro se (July 7, 2016 Transcript (D.I. 16), at 8:2-8:12, 10:18-10:24; August 26, 2016 Transcript (D.I. 18), at 7:3-8:15; September 23, 2016 Transcript (D.I. 23), at 4:2-4:15).

         III. Analysis

         In addition to her claim that I am biased and will be a material witness, defendant also alludes to a number of other arguments in her sprawling submissions. Each of defendant's arguments, to the extent they can be discerned from her submissions, will be addressed in turn.

         A. Disqualification

         Defendant appears to assert two grounds for disqualification. First, defendant claims that I "colluded and conspired with [the Honorable Debra] Freeman and [Andrew J.] Peck[, United States Magistrate Judges, ] in trying to deceive [defendant] that [Judge] Peck had signed an Order on October 20, 2015 dismissing the case against [defendant] in federal district court in [ticket number] H5118158 . . . thereby disqualifying [me] from any ruling in [defendant's] case(s)" and that my courtroom deputy and I are witnesses to the alleged conduct that gives rise to the charges against defendant (Motion to Disqualify, at 12). Second, defendant claims that I "colluded and conspired in more sham proceedings" by refusing to allow defendant's associates to sit in the well of the courtroom during a pretrial conference (Motion to Disqualify, at 11).

         Title 28, United States Code, Section 144 provides that "[w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against [her] or in favor of any adverse party, such judge shall proceed no further therein."[1] Title 28, United States Code, Section 455(a) and (b)(1) provides, in pertinent part, that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned, " or "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." In assessing a motion for recusal, the relevant inquiry is "whether an objective, disinterested observer fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal, or alternatively, whether a reasonable person, knowing all the facts, would question the judge's impartiality." United States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (alteration in original; internal quotation marks omitted); accord Dekom v. New York, 583 F.App'x 15, 17 (2d Cir. 2014) (summary order).

         All of defendant's assertions of misconduct are factually baseless and based on misrepresentations of the record. With respect to her first claim, I did not deceive defendant in any way. When defendant asked where prior Violation Notices had been filed, I explained that I did not know the answer and that defendant could go to the Clerk's Office to inquire (Nov. Tr., at 9:5-11:3). When defendant presented a document, which was presumably an order dismissing a prior Violation Notice, I read from the document and noted that it "says so ordered, [so] this is an order" (Nov. Tr., at 11:15-12:3).[2] Far from deceiving defendant, I clarified the record and addressed the issues she had raised.

         Additionally, defendant has not set forth any facts demonstrating that my courtroom deputy or I have personal knowledge of any of the events in the Superseding Misdemeanor Information. Neither my courtroom deputy nor I witnessed either the January 28 or July 7 incidents.

         Defendant's claim of bias is legally deficient. In order to constitute a basis for recusal, the alleged bias must have an extrajudicial source, i.e.., the claim must be based on something other than the judge's in-court rulings and case management decisions.

[T]he fact that Plaintiff-Appellant and Appellants were unhappy with the district court's legal rulings and other case management decisions is not a basis for recusal, and under no circumstances justifies the utterly unsubstantiated allegations of . . . dishonesty . . . and fraud lodged against the district court. See In re Int'1 Bus. Machs. Corp., 618 F.2d 923, 927 (2d Cir. 1980) ("'The alleged bias and prejudice to be disqualifying [under 28 U.S.C. ยง 455] must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge has learned from ...

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